Reno, Ins Had Law On Their Side With Raid

ANTHONY LEWIS THE NEW YORK TIMES

The critics of Attorney General Janet Reno's decision to take EliM-an GonzM-alez from the home of his Miami relatives rely heavily on legal arguments. How good are those arguments?

1. It is argued that no law authorized the attorney general's order to EliM-an's great-uncle, LM-azaro GonzM-alez, to give him up.

Long-standing statutes give the Immigration and Naturali-zation Service custody of any alien who, like EliM-an, arrives at this country's borders without entry documents. The law allows the attorney general, and through her the INS, to parole an alien, with this proviso: "When the purposes of such parole shall, in the opinion of the attorney general, have been served, the alien shall forthwith return or be returned to the custody from which he was paroled."

On April 4 LM-azaro GonzM-alez was advised by letter that Attorney General Reno had revoked EliM-an's parole in his care. The law then unequivocally required him to return EliM-an to the custody of the INS. He was told to do so, and he did not.

2. The warrant produced by the officers who made the raid was only a warrant to search the house, not to seize EliM-an.

The federal criminal rules were amended years ago to allow searches not only for fruits of crime or evidence but for individuals wrongly held. The purpose was to deal with kidnappings and other unlawful detentions.

In its application for a warrant, the INS specified that it wanted one "in order to seize the person of EliM-an GonzM-alez." The warrant, as issued, authorized officers to search the house "and if the person or property be found there to seize same."

3. The attorney general's order to agents to enter the house and take EliM-an out was precipitous.

EliM-an had been kept by the Miami relatives -- kept from his father -- for months. He had been subjected to propaganda and demonstrations at all hours of the day and night. Far from being precipitous, the attorney general had been extraordinarily patient, if not dilatory, in a situation increasingly dangerous to EliM-an's long-term well-being.

4. Negotiations with the Miami relatives were near success and should have been continued.

On the last night, the Miami relatives insisted that, rather than EliM-an being turned over to the INS and then to his father, all of them -- relatives, father and son, plus "facilitators" -- live together in a temporary home in Miami-Dade County. After all the weeks of frustrated negotiations there was no reason to think they would ever voluntarily let EliM-an go back to his father.

5. Attorney General Reno should have gone to court for a specific order requiring LM-azaro GonzM-alez to give up EliM-an.

No immigration statute gives the federal courts jurisdiction to issue such orders, and it is questionable that a judge would have entertained a request for one. If he had, powerful prudential concerns would have arisen: Court proceedings would have taken days, perhaps weeks -- with EliM-an still in the Miami circus atmosphere. If an order had been issued, the relatives' prior conduct suggests that they would have defied it. The Justice Department would have had to bring contempt proceedings -- and I do not think it could have acted while those proceedings were pending.

In the end, many weeks down the line, the attorney general would in all likelihood have had to do the same thing: send agents in to get EliM-an. But by then thousands of protesters might have surrounded the house, making violence more likely.

6. The INS agents should not have carried such heavy weapons or worn such menacing clothes.

The photograph was indeed shocking. But police going into a hostile situation where there may be danger say they must be prepared for the worst. In fact there was no violence, and the show of force may have prevented it.

Over the last several years I have written many columns critical of the INS and of the harsh 1996 Immigration Act it enforces.

In this case, under Attorney General Reno's guidance, the INS swiftly, professionally and legally accomplished what many thought could not be done without tragedy.

Write to columnist Anthony Lewis at The New York Times, 229 W. 43rd St., New York, NY 10036.